You are having a nosey at a competitor’s website. The content seems familiar. Too familiar.
The High Court (Circuit Commercial Court) in Leeds recently heard an application for a Norwich Pharmacal order to disclose the identity of a ‘cut and paster’ of web content from a Bradford solicitors’ website.
The Claimant, a firm of solicitors in West Yorkshire, engaged a Contractor in India to develop a website and contracted a Consultant to assist with the project.
Before the website went live, it came to the Claimant’s attention that identical content (relating to the mis-selling of car finance) had been published on the Defendant’s website.
The content was removed at the Claimant’s request, with the Defendant maintaining that it had received the content in all innocence from its own contractor, which is named in open correspondence. They refused to back this up with a witness statement.
The Claimant then applied for a Norwich Pharmacal order.
In Norwich Pharmacal Co. v. Customs and Excise Commissioners (1973), the House of Lords laid out the conditions under which a court could exercise its discretion to compel an innocent third party to assist a wronged party by disclosing the identity of the wrongdoer.
- A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer.
- There must be the need for an order to enable action to be brought against the ultimate wrongdoer.
- The person against whom the order is sought must: (a) be mixed up in, so as to have facilitated, the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
The Court was not satisfied that the Claimant had satisfied the first criterion that a wrong had been carried out. There was no evidence that the Claimant was entitled to the copyright asserted.
Despite this, the Court considered the second criterion of necessity.
…the Claimant’s correspondence is littered with references to [their Consultant] being the person who had misappropriated the information. The Claimant had therefore identified who they thought the likely wrongdoer was long before the proceedings were issued.
The Defendant has offered to provide the information in open correspondence. Accordingly, The Claimant’s insistence on a witness statement verified by a statement of truth was not needed to identify “…the ultimate wrongdoer”. The third criterion was not considered as it had been conceded by the Defendant as flowing from the first and second.
On the exercise of discretion:
The court can only make an order in circumstances where the order is a necessary and proportionate response in all of the circumstances. …given the circumstances of refusal of an open offer of identification of the wrongdoer and failing to exhaust of the possibilities for obtaining the relevant information, I would not in any event have exercised my discretion to grant the order sought.
The Claimant’s application was dismissed.
The procedural points, in this case, should not be allowed to detract from the fact that websites thrive on unique content.
To cut and paste is not unique. Aside from the intellectual property issues, plagiarised content may negatively impact how search engines view your website.
Keep yourself right by delivering unique, engaging content for your law firm clients.